Surekha Domaji Bele vs Executive Engineer, Testing Division, MSEDCL

Held: Dismissal order set aside as wholly disproportionate to the charges proved, while leaving the finding of misconduct undisturbed – Imposition of the second punishment of treating the suspension undergone as punishment not permissible and set aside – Finding that misconduct stood proved against the appellant to remain undisturbed and the adjudication of misconduct recorded in complaint by the labour court, which was also affirmed in Revision not reopened – Appellant was a party to the adjudicatory proceedings before the labour court where the misconduct was recorded and had the opportunity to lead and in fact led the evidence in her favour – Not established that the appellant holds a civil post thus, entitled to the protection as envisaged in Art.311 of the Constitution – No error in the concurrent finding that the Executive Engineer was competent under the Regulations to pass an order of punishment against the Appellant-Pay Grade-III employee – Challenge to the dismissal order on the ground of lack of competence rejected – Regarding the dismissal order, the disciplinary authority proceeded substantially on the earlier show-cause notice, which was based on the domestic enquiry that was subsequently found not to be valid – After remand, the misconduct was still established, but in a different manner before the new forum, based on the evidence led before the labour court – Disciplinary authority was, thus, required to give another show cause notice with fresh application of mind to enable the appellant to submit her representation as regards the nature of punishment – Before imposing the penalty of dismissal from service, the disciplinary authority failed to consider the relevant factors bearing on punishment – Competent authority to determine the appellant’s claim for subsistence allowance – Since the appellant has already crossed the age of superannuation, no direction for reinstatement can be issued at this stage – Thus, the impugned judgment and order passed by the High Court set aside in terms of the directions. [Paras 111.1-112]

Constitution of India – Art. 311 – Applicability to employees of Government Companies/Corporations – Civil post under Union or State – Protection u/Art. 311 – Explained. [Paras 35-37] MSEDCL Employees Service Regulations, 2005 – Regn.88(j) – Fresh show-cause notice for punishment, if required after the de novo proceedings before the labour court – Disciplinary authority, if could impose dismissal by relying substantially on the earlier notice, without independently considering the findings which ultimately survived after remand and without giving the appellant an opportunity to place her explanation on the quantum of punishment in the light of those later findings: Held: Second opportunity against proposed punishment is not a mandate in every disciplinary proceeding – However, where the applicable service regulation expressly provides for a post-enquiry notice communicating the findings and calling upon the employee to show cause against the contemplated punishment, the authority must comply with that regulation – Regn.88(j) contemplates that, after the enquiry is completed, the competent authority shall communicate its findings and call upon the employee to show cause against the contemplated punishment – On facts, the enquiry which ultimately sustained the charges was the de novo adjudication before the labour court after the earlier enquiry was found defective – Thus, decision-making process on punishment could not be treated as complete merely because the earlier show-cause notice was held valid – Non-service of a fresh notice after the labour court’s de novo finding does not vitiate the finding of misconduct, since the appellant was party to the adjudicatory proceedings before labour court and industrial court – However, the disciplinary authority was required to apply its independent mind to the findings which ultimately survived after remand to the question of appropriate punishment and issue fresh showcause notice on the proposed punishment, for the period of reply in terms of the earlier show-cause notice had long expired and the basis of it also does not exist – While the finding of misconduct remains undisturbed, matter remitted to the competent authority for fresh consideration as regards quantum of punishment by issuing a fresh show-cause notice. [Paras 42, 54,56-57] MSEDCL Employees Service Regulations, 2005 –

Regns.88(a)(ii)(i), (ii), (iii) – Subsistence allowance – Suspension order to the effect that during suspension the appellant would be entitled, as per MSEDCL rules, to subsistence allowance and it directed the appellant to mark attendance once in a week at the office of the Executive Engineer – Appellant’s case that she was not paid subsistence allowance during the entire period of suspension, till the order of dismissal which continued for nearly eleven years:

Held: Subsistence allowance is intended to preserve the suspended employee’s minimum means of survival and to enable her to effectively defend herself in the disciplinary proceedings – Reporting condition had a regulatory foundation and cannot be treated as wholly extraneous – However, the existence of a reporting condition does not mean that subsistence allowance can be mechanically denied for the entire period of nearly eleven years without examining the effect of the remaining parts of Regn.88 – Object of requiring a suspended employee to report is to ensure that the employee remains available to the employer, does not evade the proceedings, and does not take advantage of suspension by engaging in gainful employment elsewhere or becoming unavailable – On facts, no finding that the appellant was gainfully employed elsewhere during the period of suspension – Appellant’s suspension continued till the dismissal, for nearly eleven years – During this period, she was required to defend herself in the departmental process, before the Labour Court, and in connected proceedings – Denial of subsistence allowance for such a prolonged period directly affects the employee’s ability to survive and to defend herself effectively – For the period from 04.09.2006 to 03.03.2007, the original reporting condition in the suspension order may be relevant while considering the appellant’s entitlement to subsistence allowance, including whether leave of absence from reporting ought to have been sought or granted – For the remaining period, the appellant be treated as eligible for subsistence allowance. [Paras 58, 68-77]

MSEDCL Employees Service Regulations, 2005 – Regn.91 – After imposing the penalty of dismissal from service, the disciplinary authority further directed that the entire period already spent under suspension also be treated as punishment – Direction treating the suspension period as punishment, if valid:

Held: Treating the entire suspension period as punishment may deprive the employee of the ordinary service and monetary benefits attached to that period, including arrears of pay and allowances, continuity-related benefits, increments or other service advantages depending on the rules, and consequential retiral or terminal benefits – This consequence is severe because the suspension period was for nearly eleven years – Thus, treating the entire period as punishment is not a routine consequential adjustment – It has the practical effect of depriving the appellant of the standard service benefits for a substantial part of her remaining service, apart from the subsistence allowance which Regn.88(a)(v) expressly protects if it was already paid or payable – Appellant’s suspension from 04.09.2006 was not, by itself, a punishment – It was a suspension pending enquiry – Appellant cannot be visited with both dismissal u/Regn.91(2)(g) and a separate punishment of suspension u/Regn.91(2)(d) for the same misconduct – Direction in the dismissal order treating the suspension period as punishment shall not operate as an independent or additional penalty over and above the harsher penalty finally imposed – Competent authority, while passing the fresh order on punishment, to separately decide the service and monetary consequences of the suspension period only in accordance with Regn.88(a)(v) – While doing so, it shall keep in mind that subsistence allowance already paid or payable stands protected under the said provision, and that the past suspension period cannot be treated as an independent additional punishment for the same misconduct, if the disciplinary authority chooses a more severe punishment. [Paras 79-81, 87-89]

MSEDCL Employees Service Regulations, 2005 –

Regns.86, 91 – Punishment of dismissal, if disproportionate: Held: Misconduct found proved against the appellant relates to indiscipline, insubordination, and the consequent tampering with documents – However, the material presently noticed does not show corruption, illegal gratification, moral turpitude, misappropriation of funds, proved pecuniary loss to the employer, public scandal, or conduct bringing the institution into public disrepute – Allegations substantially appear to arise out of internal office functioning and service-related conflict and did not play out in the public domain – Competent authority did not undertake an exercise of evaluating various relevant factors – Order does not reflect consideration of the appellant’s long service, past record, age, absence or presence of dishonesty, or absence or presence of actual loss as also commended by the Labour Court – Even where the Regulations include dismissal as one of the permissible punishments for acts of misconduct, the authority is not relieved of its duty to consider all relevant factors to see whether the facts of the case truly warrant the most extreme form of penalty – Mere fact that a proved act falls within the broad category of “misconduct” under the Regulations does not mean that dismissal must follow as a matter of course – Dismissal is ordinarily justified where the misconduct is of such gravity that continuance of the employee would be wholly incompatible with discipline, trust or institutional functioning – Cases involving corruption, illegal gratification, moral turpitude, misappropriation, acts causing substantial loss to the employer, or conduct showing complete unfitness for continued service stand on a different footing – However, where the misconduct does not involve corruption, moral turpitude, financial misappropriation or proved loss to the employer, and where there is long service without much blemish, the disciplinary authority must carefully examine whether any lesser punishment would meet the ends of justice. [Paras 107-110]

Service – Dismissal from service – Form of penalty – Severest form. [Paras 106-110]